Leaf v The Queen

[2011] NZCA 116

IN THE COURT OF APPEAL OF NEW ZEALAND

CA655/2010
[2011] NZCA 116

BETWEEN  CHARLES MURRAY LEAF
Appellant

AND  THE QUEEN
Respondent

Hearing:         24 March 2011

Court:             Randerson, Simon France and Lang JJ

Counsel:         Appellant in person
N P Chisnall for Respondent

Judgment:      29 March 2011 at 3 p.m.

JUDGMENT OF THE COURT

The application for an extension of time to appeal against conviction and sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1. Mr Leaf appeals against his conviction after jury trial in the District Court on 1 October 2009 for assault with intent to injure.  He was sentenced on 2 November 2009 by the presiding Judge, Judge Butler, to 150 hours community work. [1]  He has served that sentence.

   [1]      R v Leaf DC Wellington CRI-2009-085-917, 2 November 2009.

2. Mr Leaf now appeals against conviction and sentence.  The appeal against conviction is advanced on three principal grounds which we treat as a contention that the jury’s verdict was unreasonable.  To use Mr Leaf’s words:

   (a)        The prosecution did not prove beyond reasonable doubt that there was an intention to injure.

   (b)       The prosecution did not disprove self-defence.

   (c)        The prosecution did not prove to the jury that the evidence at trial was true.

   (d)       The prosecution did not prove that the charge of intent to injure was just a single event under s 329(6) of the Crimes Act 1961.

3. The appeal was filed nearly a year out of time and the Crown opposes any extension of time.  We examine the merits nevertheless.

4. The sentence appeal is advanced only on the footing that the sentence must be set aside if the conviction appeal succeeds.

Background facts

1. The prosecution arose from an altercation between Mr Leaf and a fellow employee (a Mr Sanderson) at their place of work.  Some basic elements of the incident are not in dispute:

   (a)        There was a verbal dispute between the two men.

   (b)       Mr Sanderson was responsible for some provocation by using offensive language towards Mr Leaf.

   (c)        Mr Leaf pushed Mr Sanderson back by placing his two hands on Mr Sanderson’s chest.

   (d)       At a later point, Mr Leaf placed his left hand on Mr Sanderson’s neck with sufficient force to leave red marks on Mr Sanderson’s neck which were photographed.

   (e)        During the struggle, Mr Sanderson’s finger went into Mr Leaf’s mouth and was bitten.

2. In other respects the evidence was disputed.  The principal witnesses for the prosecution were Mr Sanderson and the manager, a Mr White.  The gist of their evidence was that Mr Leaf became angry; pushed Mr Sanderson away causing him to nearly lose balance; Mr Leaf then grabbed Mr Sanderson about the neck; and finally pushed him on to a desk and did not let go until Mr Sanderson slumped to the floor.  Mr Sanderson said he was finding it difficult to breathe and that his finger accidentally went into Mr Leaf’s mouth as he (Mr Sanderson) tried to push Mr Leaf away.

3. Mr Leaf gave evidence that Mr Sanderson was the aggressor.  While he accepted that he was the first to engage in physical violence, he only did so because Mr Sanderson was behaving very aggressively and he feared Mr Sanderson was about to attack him.  After pushing Mr Sanderson, the latter came back at him in an aggressive manner.  Mr Sanderson grabbed Mr Leaf about the chest area and pulled off a greenstone pendant he was wearing.  He was also kicking Mr Leaf with steel-capped boots and was attempting to eye-gouge him.  It was in this context that Mr Leaf grabbed the base of Mr Sanderson’s neck.  He denied any intention to injure and said he had acted only in self-defence.

The issues at trial

1. Mr Leaf accepts that the essence of the Crown case was that he had assaulted Mr Sanderson by grabbing him about the neck and that he did so with intent to injure.  There being no dispute that an assault had occurred, the remaining issues were whether the Crown had proved beyond reasonable doubt that Mr Leaf intended to injure Mr Sanderson and whether the Crown had proved that he was not acting in self-defence.

2. In submitting that the Crown had failed to prove the identified issues, Mr Leaf effectively invited us to review the evidence as if his version of events were correct.  He also pointed to alleged inconsistencies in the evidence of Mr Sanderson and Mr White which, he submitted, showed that their evidence was unreliable.  He also sought to draw a distinction between two phases of the incident.  The first was the complainant’s threatening manner which had resulted in Mr Leaf pushing Mr Sanderson away.  Mr Leaf submitted this was a reasonable response in the circumstances.  The second phase was Mr Sanderson responding by grabbing Mr Leaf which led to Mr Leaf placing his hand on Mr Sanderson’s neck and pushing him backwards.

Discussion

1. The test to be applied under s 385(1)(a) of the Crimes Act was refined by the Supreme Court in Owen v R.[2]  The Court held that a verdict would be unreasonable if the evidence could not have reasonably satisfied the jury that the accused was guilty.  The Court emphasised that the appellate court is performing a review function and does not substitute its own view of the evidence.  Appropriate weight must be given to the advantages a jury has over an appellate court.  In that respect, an assessment of the honesty and reliability of the witnesses is a classic example.  The weight to be given to individual pieces of evidence is essentially a jury function and appellate courts should not lightly interfere in this area.[3]

   [2]      Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

   [3] At [13].

2. This case is a typical example of the existence of disputed facts raising issues quintessentially within the province of the jury.  There was evidence from Mr Sanderson and Mr White which, if accepted by the jury, supported the finding of guilt.  It was open for the jury to accept the essential account given by Mr Sanderson and supported by Mr White.  Such minor inconsistencies as there were between the evidence of these two witnesses were not such as to persuade us that their evidence could not reasonably have satisfied the jury that Mr Leaf was guilty.  That is sufficient to dispose of Mr Leaf’s first three grounds of appeal.

3. We are not persuaded by Mr Leaf’s submission in relation to s 329(6).  This is not a case which gives rise to any of the difficulties identified by the Supreme Court in R v Mason.[4]  At no time did the prosecution rely on more than one action by Mr Leaf as constituting the assault.  As earlier noted, it is common ground that the Crown’s case was based on Mr Leaf grabbing Mr Sanderson’s throat.  Mr Leaf’s defences of lack of intent and self-defence were directed to his alleged actions in that respect.  We are satisfied that Mr Leaf’s submission on this point does not afford any valid appeal ground.

Other matters

[4]      R v Mason [2010] NZSC 129, [2011] 1 NZLR 296.

1. Mr Leaf raised a number of other issues which he described as mitigating circumstances.  These focused principally on a submission by Mr Leaf that Mr White ought to have intervened to stop the incident between the two men.  In sentencing Mr Leaf, the Judge was critical of this aspect of the matter.  Mr Leaf also submitted that his employer had duties under the Health and Safety in Employment Act 1992 which had not been observed.  He also raised issues about a back injury he says he sustained in the incident and matters to do with Accident Compensation.

2. We do not comment on any of these issues.  It is sufficient to record that none of them affords any basis to challenge the validity of the conviction.  It was not suggested these factors warranted a lesser sentence.

Conclusion

1. In his notice of appeal, Mr Leaf sought an extension of time to appeal.  He explained he had been occupied with employment and ACC issues.  We do not see any basis for granting an extension in any event. The delay is long, there has been no adequate explanation for it, and the appeal could not succeed on the merits.

2. Accordingly we refuse the application for an extension of time.  The result is that the conviction and sentence stands.

Solicitors:
Crown Law Office, Wellington for Respondent